The extension of the Bargaining Council Collective Agreement to non-parties may well be the last nail in the coffin for the sector that was hit the hardest by the pandemic, and the closure of its business for a large part of the lockdown in the country.
Constructive engagement with government revealed that consultation was not required by law for the agreement to be extended.
According to the Government Gazette published on 8 January, all tearooms, restaurants, catering establishments, coffee shops, pubs, taverns, roadhouses, cafes, snack bars, fast food outlets, convenience stores and industrial, commercial and function caterers across the country, excluding Johannesburg and Pretoria, which already have an agreement in place, will be required to adhere to new conditions of employment.
The conditions of employment include that employers must pay monthly membership fees to the Bargaining Council. Employers and employees will also have to contribute towards provident and funeral funds as specified by the Bargaining Council.
Fedhasa not having it
The Federated Hospitality Association of South Africa (Fedhasa), that represents an alliance of hospitality stakeholders, has met with the department of employment and labour to raise concerns over the recently gazetted collective agreement extension to non-parties from 18 January 2021.
According to Fedhasa, members of the alliance are challenging the basis of the extension, because the listed employer organisations and employee unions “allegedly have 50% + 1 membership within the geographical scope of the council”, which is countrywide, excluding Johannesburg, Pretoria and surrounds.
“It is our view that this data is totally inaccurate. While the hospitality industry supports the need for fair employee benefits, the agreement was extended without ascertaining the extent to which the listed parties to the current Collective Agreement truly represent the industry. Consultation with industry will yield a more positive outcome for both business and employees,” says Rosemary Anderson, national chairperson Fedhasa.
The department of employment and labour said there was no period of consultation, since the minister is not obliged in terms of the law if the Registrar convinces him that there is 50% +1 representation.
Court must decide
“Our consultation with the department was amicable and constructive. They have confirmed that, while they are sympathetic to our arguments, our only recourse is to test whether the listed parties represent the industry in court, which will provide clarity for both parties,” Anderson said.
She pointed out that “it would appear wasteful to indulge in any court actions that could preferably be sorted out by consultation, mediation and discussion” during these times.
“Since this is the only option available, a hospitality sector alliance, which includes Fedhasa, major restaurants, fast food brands and representatives from the tavern industry are forced to explore its legal options immediately. We will continue to pursue constructive engagement with government throughout the process.”